Military's highest court voids more than 30 decisions by improperly appointed civilian judge

The Court of Appeals for the Armed Forces, the highest court in the U.S. military, has ruled that a civilian judge was improperly appointed to the Air Force Court of Criminal Appeals. The ruling means multiple cases will be reheard by the AFCCA.

According to the military justice blog CAAFlog, CAAF found that Judge Laurence Soybel was improperly appointed to the Air Force Court of Criminal Appeals. (The AFCCA is the Air Force’s highest court and an intermediary court between Air Force courts-martial and CAAF.) Soybel had been an Air Force major and sat on the AFCCA in that role. But he was retired from the service and a civilian Air Force employee when he was appointed by Defense Secretary Chuck Hagel.

That was a problem. CAAF ruled (PDF) that Hagel had no authority to appoint civilians to the court. The U.S. Supreme Court has found that military officers may serve as appellate military judges as part of their duties, without a separate appointment process. But for civilians, the appointments clause of the U.S. Constitution says “inferior officers” can be appointed by department heads like Hagel if Congress grants that authority. And the Supreme Court has found that civilian military judges are “inferior officers” within the meaning of the appointments clause. Thus, the question was whether Hagel had statutory authority to make Soybel’s appointment.

“It is relatively rare for a case to raise an issue involving the fundamental structural provisions devised by the Framers in allocating power within the government they constructed,” wrote Judge Scott Stuckey in a unanimous decision for all five of CAAF’s judges. “This is such a case.”

CAAF found that Hagel had no appointments authority and thus, Soybel should have undergone the presidential appointments process. Because he did not, his appointment is invalid, the court concluded.

The decision came in the case of U.S. v. Senior Airman David Janssen. Janssen was convicted of rape, assault consummated by battery and other charges. On appeal, Janssen’s sentence and most of his convictions were upheld by a three-judge panel of the AFCCA, including Soybel. Janssen then appealed the decision, saying Soybel had not been properly appointed. This was one of numerous cases appealed to CAAF on the same grounds, many of which were remanded in 2013.

CAAFlog reports that the decision affects Janssen’s own case and about 32 “trailers.” A December article from the Associated Press says rearguing the cases could add six months to a year to each appeal.